April 20, 2007
No Secret Trial for AIPAC DefendantsBy Clarice Feldman
This week, federal prosecutors proposed a procedure that while purporting to protect national defense secrets would have denied the AIPAC defendants a public trial and exposed this information to more than a dozen people with no security clearances and no obligation to keep this information secret. Federal judge T.S. Ellis, III laughed them out of court.
In the old Get Smart TV series Maxwell Smart and his superior exchanged secrets under an elaborate contraption called the Cone of Silence. It had a small problem: Under the Cone they couldn't hear each other but everyone else in the room could. I thought of it when I read a transcript of a hearing on April 16 in U.S v. Rosen and Weissman (The AIPAC Case). I thought of it because the government proposed and the Court rejected a ridiculous proposed procedure under which the case would be tried.
In this prosecution the government contends that the discussion between the defendants and the then-US employee Larry Franklin involved national defense information, and the government proposed an expansion of a rarely used tool "the silent witness" to keep from the public what the information in question was.
Judge Ellis ruled favorably on the defense motion to strike the government's proposed procedure for dealing with classified and NDI (nation defense information) material, which comprises the heart of the case. The Government had proposed an extension of "the silent witness rule" pursuant to which classified documents go the jury and all the testimony about the documents and the information contained in them is done by reference to the document without public disclosure of the contents of the document.
The judge began by noting that the terms "classified" and "NDI" are not coextensive. That while the Executive has the sole authority to classify information, and the Judge cannot disturb that determination, the government must prove that the classified information is NDI (classified information, closely held and damaging to national security if disclosed). He continued by explaining the procedures of the Classified Information Protection Act, designed to assure the defense gets a fair trial without the government having to reveal classified information.
In sum, after the Court and defense counsel examine all the classified information and designate which items they intend and need to use, the court must decide if that material is relevant and admissible at trial and if he so finds, the government must, if it does not want that information public, admit certain relevant facts that the classified information would tend to prove, or substitute that information with a summary which the Court determines will meet the defendants' need for a fair trial without exposing national secrets.
The defense had specified which documents it wanted. Instead of offering to admit certain facts or proffer up summaries, the Government proposed a novel procedure:
which the Court approved under CIPA. As Judge Ellis noted:
He noted that in a few cases a "silent witness" rule had been permitted but never before had that involved giving the jury "something different from the public" nor had it been used for "all classified information in both the government's case and the defense case." He continued by describing how the government envisioned the intricate choreography of the proposal, and to read the Get Smart nature as described by the Judge is to understand why he said it would lead to "juror confusion".
The government also proposed that
Hang in there with me, because the government proposal was even more ridiculous:
Why this Maxwell Smart procedure with codes that change from witness to witness so one witness' Country A, would be another's Country B? The judge said it was to wall off the public from seeing and hearing what the judge and jury, counsel and witnesses see and hear. But he ruled "What the public does not see or hear is at the heart of this case, the information the government claims is the NDI that the defendants' allegedly received and distributed without authorization." Making this even more preposterous was that the jury which would hear and see the classified information wouldn't have security clearances and could not be prevented from disclosing it to others.
Judge Ellis said CIPA covers the vetting and substitutions of classified material for "a public trial" and ruled "the authority to use substitutions is not the authority to close the trial to the public...there is no evidence that Congress expected [judicial creativity to fashion creative solutions respecting such substitutions] to extend to closure of trials." And if it did, he added, it would be manifestly unfair to the defendants to do so. He described how the government's burden of proof included the need to establish the defendants' mens rea [knowledge of wrongdoing] and that the alleged NDI was actually NDI and would be severely hobbled in doing so under this procedure.
The Judge offered a number of examples of what he meant, including this one:
Of course, this procedure would as well
I certainly think that point is irrefutable. (And then, he reminds us of how much more confusing it is when we add the government's "proposed frequently-changing code references". (It gives me a headache just thinking about it, frankly.) The same country would be Country A with one witness and Country B for another, and the same person would be referred to as Witness X by one witness as witness Q by another.
And while he thought the admonition to the jury to not discuss the evidence would be unavailing he also thought the very giving of an instruction to the jury that the material shouldn't be discussed with others after the trial would necessarily confuse them and make them assume it was all NDI, the very thing the trial was to determine. He found that, too, to be "unfair and inappropriate".
The defense had raised an additional objection to the procedure on constitutional grounds that it deprived them of a public trial open to public scrutiny. Judge Ellis agreed:
The judge detailed why public trials are important and that the government's burden to establish that closure was necessary was weighty. The government argued that a compelling interest was the classified information involved. Judge Ellis had a problem with that-the government's own proposal--- the
Moreover, he noted the government's claim was simply conclusory and not supported by evidence-such as affidavits.
It's clear the government is concerned about the nature of its evidence being revealed publicly. I think the real reason is because it's so thin, and the public would know that if they saw it. Elsewise they'd have simply followed the perfectly standard and adequate CIPA procedure.
I think it's equally obvious that the Judge is no dope and can see smoke and mirrors even when it's in a government motion dolled up with important sounding words like "Classified
Information" and "National Defense Information."
Update from the Washington Post:
The Justice Department yesterday was given until May 2 to determine how it wants to proceed in the controversial prosecution of two former pro-Israel lobbyists charged with violating the 1917 Espionage Act after the federal judge in the case turned down prosecutors' attempt to close from public scrutiny a substantial portion of the trial in order to protect classified information.Clarice Feldman is an attorney in Washington, DC and a frequent contributor to American Thinker.